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This is a Bill, not an Act. For current law, see the Acts databases.
Western Australia
Bail Amendment Bill 2000
CONTENTS
Part 1 -- Preliminary
1. Short title 2
2. Commencement 2
Part 2 -- Amendments to Bail Act 1982
Division 1 -- The Act amended
3. The Act amended by this Part 3
Division 2 -- Amendment relating to summons cases
4. Section 4A inserted 3
Division 3 -- Amendments relating to dispensing
with bail
5. Section 7 amended 4
6. Section 7A inserted 4
7. Section 12 amended 5
8. Heading to Part III replaced 5
9. Sections 13A and 13B inserted 5
10 . Section 14 amended 8
11 . Section 17A amended 9
12 . Section 56 repealed 9
13 . Sections 59A and 59B inserted 9
14 . Section 60 amended 12
15 . Schedule 1 amended 12
page i
96--1
Bail Amendment Bill 2000
Contents
Division 4 -- Amendments relating to duty of
judicial officer in respect of unconvicted defendants
16 . Section 5 amended 14
17 . Section 6 amended 14
18 . Section 7 amended 15
19 . Sections 7B, 7C and 7D inserted 15
Division 5 -- Amendments relating to certificate for
release from custody
20 . Section 11 amended 19
21 . Section 29 amended 20
Division 6 -- Amendments relating to the extension
of section 14 to Judge of the District Court or of the
Children's Court
22 . Section 3 amended 20
23 . Section 14 amended 21
Division 7 -- Amendments enabling regard to be
had to circumstances of offence and relating to bail
in murder cases
24 . Schedule 1 amended 22
Division 8 -- Amendment relating to discretion to
waive deposit
25 . Section 18 amended 23
Division 9 -- Amendments relating to procedure
under section 19
26 . Section 19 amended 24
Division 10 -- Amendments relating to bail
undertaking
27 . Section 28 amended 25
28 . Various provisions amended 25
Division 11 -- Amendments relating to bail during
trial
29 . Section 7 amended 26
30 . Section 7E inserted 26
31 . Section 31A inserted 27
page ii
Bail Amendment Bill 2000
Contents
32 . Section 44 replaced 29
Division 12 -- Amendments relating to notices
under section 31
33 . Section 3A inserted 30
34 . Section 31 amended 31
35 . Section 32 amended 32
Division 13 -- Amendment relating to authority to
approve sureties
36 . Section 36 replaced 34
Division 14 -- Amendments relating to giving of
notices under section 44
37 . Section 45 amended 35
Division 15 -- Amendments relating to enforcement
of surety's undertaking
38 . Section 49 amended 37
Division 16 -- Amendments relating to the
prosecution of offences against section 51
39 . Section 51A inserted 38
40 . Section 52 amended 39
Division 17 -- Amendments relating to the official
who may take action under section 54 and the
judicial officer who has jurisdiction under section 55
41 . Section 46 amended 40
42 . Section 54 amended 40
43 . Section 54A inserted 43
Division 18 -- Amendment relating to
"bail-shopping"
44 . Schedule 1 amended 44
Division 19 -- Amendment to correct an omission
and relating to length of bail for initial appearance
45 . Schedule 1 amended 45
page iii
Bail Amendment Bill 2000
Contents
Division 20 -- Amendments relating to appeal to
Court of Criminal Appeal
46 . Section 3 amended 45
47 . Sections 15A, 15B and 15C inserted 45
48 . Schedule 1 amended 48
Division 21 -- Amendments relating to prescription
of forms
49 . Section 3 amended 49
50 . Various provisions amended 49
Division 22 -- Miscellaneous amendments
51 . Section 3 amended 50
52 . Section 7A amended 50
53 . Section 8 amended 51
54 . Section 9 amended 51
55 . Section 11 amended 51
56 . Section 21 amended 52
57 . Section 31 amended 52
Division 23 -- Reprinting of Bail Act 1982
58 . Reprinting authorized 52
Part 3 -- Consequential amendments to
other Acts
59 . Justices Act 1902 amended 53
60 . Supreme Court Act 1935 amended 53
Part 4 -- Transitional provisions
61 . Definitions 54
62 . Interpretation Act 1984 not affected 54
63 . Amendment made by section 4 54
64 . Amendments made by Division 3 of Part 2 55
65 . Amendments made by section 19 55
66 . Amendments made by section 20 55
67 . Amendment made by section 23 55
68 . Amendment made by section 24 56
69 . Amendment made by section 25 56
70 . Amendment made by section 26 56
page iv
Bail Amendment Bill 2000
Contents
71 . Amendments made by sections 27 and 28 56
72 . Amendments made by sections 30 and 31 57
73 . Amendment made by section 32 57
74 . Amendments made by section 34 57
75 . Amendments made by section 35 57
76 . Amendment made by section 36 57
77 . Amendments made by section 37 58
78 . Amendments made by section 38 58
79 . Amendment made by section 39 58
80 . Amendments made by section 40 58
81 . Amendments made by sections 42 and 43 59
82 . Amendment made by section 44 59
83 . Amendments made by section 45 59
84 . Amendments made by sections 46 and 47 59
85 . Amendment made by section 48 59
86 . Amendment made by section 52 60
87 . Amendment made by section 54 60
88 . Amendment made by section 60 60
89 . Powers in relation to transitional provisions 60
page v
Western Australia
LEGISLATIVE ASSEMBLY
Bail Amendment Bill 2000
A Bill for
An Act to amend the Bail Act 1982, and to consequentially amend the
Justices Act 1902 and the Supreme Court Act 1935.
The Parliament of Western Australia enacts as follows:
page 1
Bail Amendment Bill 2000
Part 1 Preliminary
s. 1
Part 1 -- Preliminary
1. Short title
This Act may be cited as the Bail Amendment Act 2000.
2. Commencement
5 (1) This Act comes into operation on a day fixed by proclamation.
(2) Different days may be fixed under subsection (1) for different
provisions.
page 2
Bail Amendment Bill 2000
Amendments to Bail Act 1982 Part 2
The Act amended Division 1
s. 3
Part 2 -- Amendments to Bail Act 1982
Division 1 -- The Act amended
3. The Act amended by this Part
The amendments in this Part are to the Bail Act 1982*.
5 [* Reprinted as at 27 August 1999.
For subsequent amendments see Act No. 47 of 1999.]
Division 2 -- Amendment relating to summons cases
4. Section 4A inserted
After section 4 the following section is inserted in Part 1 --
10 "
4A. Detention and bail in summons cases
(1) Where --
(a) a defendant has appeared in court for an
offence in obedience to a summons under
15 section 52 of the Justices Act 1902; and
(b) a judicial officer adjourns the proceedings,
the defendant is not to be detained in custody to further
appear before the court for that offence unless the
judicial officer so orders.
20 (2) If an order is made under subsection (1), the duty
described in section 7(1) applies.
(3) On any appearance in court by the defendant a judicial
officer to whom section 7(1) applies may revoke an
order made under subsection (1).
25 ".
page 3
Bail Amendment Bill 2000
Part 2 Amendments to Bail Act 1982
Division 3 Amendments relating to dispensing with bail
s. 5
Division 3 -- Amendments relating to dispensing with bail
5. Section 7 amended
Section 7(5) is amended by deleting "power conferred by
section 9" and inserting instead --
5 " powers conferred by sections 7A and 9 ".
6. Section 7A inserted
After section 7 the following section is inserted --
"
7A. Bail may be dispensed with by court
10 (1) A judicial officer referred to in subsection (1) of
section 7 may, instead of discharging the duty imposed
by that subsection, dispense with the requirement for
bail for an appearance in court for an offence by a
defendant if the judicial officer --
15 (a) has jurisdiction to do so under section 13A(1);
and
(b) may properly do so under section 13A(2).
(2) Where the requirement for bail is dispensed with under
this section, the defendant has a right to be at liberty
20 until the defendant is required to appear before a court
for the offence, but subject to --
(a) section 59A;
(b) in the case of a child defendant --
(i) compliance with section 13A(3); and
25 (ii) the operation of section 17A;
and
page 4
Bail Amendment Bill 2000
Amendments to Bail Act 1982 Part 2
Amendments relating to dispensing with bail Division 3
s. 7
(c) any requirement that the defendant be in
custody for some other offence or reason.
".
7. Section 12 amended
5 Section 12 is amended by deleting "section 11(1)" and inserting
instead --
" sections 7A(2) and 11(1) ".
8. Heading to Part III replaced
The heading to Part III is deleted and the following heading is
10 inserted instead --
"
Part III -- Jurisdiction relating to bail
".
9. Sections 13A and 13B inserted
15 After section 13 the following sections are inserted --
"
13A. Jurisdiction to dispense with bail and how
jurisdiction to be exercised
(1) Jurisdiction to dispense with the requirement for bail
20 under section 7A for any appearance described in the
first column of clause 2 or 3 of Part A of Schedule 1 is
vested, subject to Part B of that Schedule, in the
judicial officer specified in the second column of that
clause opposite that description; but clause 7 of that
25 Part does not apply for the purposes of this subsection.
page 5
Bail Amendment Bill 2000
Part 2 Amendments to Bail Act 1982
Division 3 Amendments relating to dispensing with bail
s. 9
(2) The jurisdiction referred to in subsection (1) is
exercisable only --
(a) in respect of an appearance in court before
conviction for an offence;
5 (b) if it appears to the judicial officer that bail
would be granted in accordance with clause 1
or 2 of Part C of Schedule 1 but that in the
circumstances the completion of bail papers is
an unnecessary imposition; and
10 (c) in the case of a child defendant, subject to
subsection (3).
(3) The requirement for bail for an appearance in court by
a child defendant shall not be dispensed with unless the
judicial officer --
15 (a) attaches a condition to the dispensation as
mentioned in subsection (4); or
(b) is satisfied that the defendant comes within
paragraph (a) and (b) of clause 2(4) of Part C of
Schedule 1.
20 (4) The condition referred to in subsection (3)(a) is that a
responsible person, as defined in clause 2(1) of Part C
of Schedule 1, enter into an undertaking in writing to
ensure that the child appears at the required time and
place.
25 (5) Clause 2(5) of Part C of Schedule 1 applies, with all
necessary modifications, to the responsible person and
the undertaking referred to in subsection (4) as if they
were a responsible person and an undertaking under
subclause (3)(c) of that clause.
page 6
Bail Amendment Bill 2000
Amendments to Bail Act 1982 Part 2
Amendments relating to dispensing with bail Division 3
s. 9
(6) For the purposes of subsection (5) --
(a) references in the provisions referred to in
clause 2(5) of Part C of Schedule 1 to a bail
undertaking shall be disregarded; and
5 (b) references to compliance with the requirements
of a bail undertaking shall be read as references
to a requirement to appear at the time and place
in respect of which bail has been dispensed
with.
10 (7) Where a judicial officer dispenses with the requirement
for bail for an appearance by a defendant the clerk or
registrar of the court shall, in accordance with
section 13B, give written notice to the defendant of the
time and place for the appearance.
15 13B. Giving and proof of notices under section 13A(7)
(1) A written notice to a defendant under section 13A(7),
shall be --
(a) given to the defendant personally; or
(b) sent to the defendant --
20 (i) by post at the defendant's address
appearing in the records of the court; or
(ii) in urgent cases, by facsimile.
(2) A person who gives a notice personally as mentioned
in subsection (1) shall endorse on a file copy of the
25 notice a certificate showing --
(a) that the person has done so; and
(b) the time of doing so.
(3) A register shall be kept at each court showing
particulars in respect of each written notice sent by post
page 7
Bail Amendment Bill 2000
Part 2 Amendments to Bail Act 1982
Division 3 Amendments relating to dispensing with bail
s. 10
or facsimile under subsection (1)(b) for an appearance
in that court or a court to which a defendant has been
committed.
(4) If a notice is sent by post under subsection (1)(b)(i) it
5 shall be presumed, unless the contrary is shown, to
have been received and at the time when, in the
ordinary course of events, the letter would have been
delivered.
(5) In any proceedings --
10 (a) a document purporting to be a copy of a notice
referred to in subsection (1) shall be evidence
of the terms of the notice;
(b) an endorsement on a copy of a notice referred
to in subsection (2) purporting to be a
15 certificate referred to in that subsection is
evidence of the matters appearing in the
certificate without proof of the signature of the
person who made the endorsement; and
(c) an entry in a register referred to in
20 subsection (3) shall be evidence of any matter
stated in the entry without proof of the making
of the entry.
".
10. Section 14 amended
25 (1) Section 14(1) is amended as follows:
(a) after paragraph (a) by deleting "and";
(b) after paragraph (b) by deleting the full stop and inserting
instead --
"
30 ; and
page 8
Bail Amendment Bill 2000
Amendments to Bail Act 1982 Part 2
Amendments relating to dispensing with bail Division 3
s. 11
(c) under section 7A dispense with the requirement
for bail or revoke an existing dispensation.
".
(2) Section 14(2)(a) is amended by deleting "or refused" and
5 inserting instead --
" , refused or dispensed with ".
11. Section 17A amended
(1) Section 17A(1)(a) is amended by inserting after "described
in" --
10 " section 13A(3) or ".
(2) Section 17A(2)(b) is amended by inserting after "granting
bail" --
" , or dispensing with the requirement for bail, ".
12. Section 56 repealed
15 Section 56 is repealed.
13. Sections 59A and 59B inserted
After section 59 the following sections are inserted --
"
59A. Where bail dispensed with, defendant may be taken
20 before judicial officer for reconsideration of matter
(1) Where the requirement for bail has been dispensed
with for a defendant under section 7A, a relevant
officer may cause the defendant to appear before an
appropriate judicial officer for reconsideration of the
25 matter, if the relevant officer has reasonable grounds to
believe that the defendant is not likely to appear at the
page 9
Bail Amendment Bill 2000
Part 2 Amendments to Bail Act 1982
Division 3 Amendments relating to dispensing with bail
s. 13
time and place notified to the defendant under
section 13A(7).
(2) Section 54(2), (2a), (3), (4) and (5) apply with
necessary modifications for the purposes of
5 subsection (1).
(3) The judicial officer before whom a defendant appears
under subsection (1) shall consider the defendant's case
afresh and may, notwithstanding section 13 --
(a) again dispense with the requirement for bail;
10 (b) grant bail; or
(c) refuse to grant bail,
in accordance with this Act, for the defendant's
appearance in court.
(4) If a police officer is satisfied that because of the
15 urgency of the case it is not practicable for the Director
of Public Prosecutions or the State Crown Solicitor to
exercise powers under this section, the police officer
may exercise those powers notwithstanding that --
(a) the court before which the defendant is required
20 to appear is a court referred to in
subsection (5)(a)(i) or (ii); or
(b) the State Crown Solicitor will conduct the
prosecution against the defendant.
(5) In this section --
25 "relevant officer" --
(a) where the court before which the defendant
is required to appear is --
(i) the District Court, the Supreme Court,
or the Court of Criminal Appeal; or
page 10
Bail Amendment Bill 2000
Amendments to Bail Act 1982 Part 2
Amendments relating to dispensing with bail Division 3
s. 13
(ii) another court and the Director of Public
Prosecutions will conduct the
prosecution against the defendant in that
court,
5 means --
(iii) the Director of Public Prosecutions; or
(iv) if subsection (4) applies, a police officer
referred to in that subsection;
and
10 (b) in any other case --
(i) means the State Crown Solicitor if that
official will conduct the prosecution
against the defendant; and
(ii) otherwise means a police officer.
15 59B. Warrant for arrest of absconding defendant
Where --
(a) at any time after that specified in a defendant's
bail undertaking for a defendant's appearance
the defendant has failed to comply with the
20 requirements of the defendant's bail
undertaking mentioned in section 28(2)(a) or
(b); or
(b) a defendant has failed to appear at the time
and place specified in a notice under
25 section 13A(7),
the court before which the defendant was required to
appear may issue a warrant to arrest the defendant and
bring the defendant before that court or a court of like
jurisdiction.
30 ".
page 11
Bail Amendment Bill 2000
Part 2 Amendments to Bail Act 1982
Division 3 Amendments relating to dispensing with bail
s. 14
14. Section 60 amended
Section 60 is amended as follows:
(a) in paragraph (a) by inserting after "bail" --
"
5 or for whom the requirement for bail has been
dispensed with
";
(b) by deleting "or surety undertaking" and inserting
instead --
10 "
, surety undertaking or notice under
section 13A(7), as the case may be,
".
15. Schedule 1 amended
15 (1) Schedule 1 Part A is amended as follows:
(a) by deleting the heading and inserting instead --
"
Part A -- Jurisdiction relating to bail
";
20 (b) in the heading to the First Column by deleting "referred
to in section 13";
(c) in the heading to the Second Column by inserting after
"granted" --
" or (where applicable) dispensed with ".
page 12
Bail Amendment Bill 2000
Amendments to Bail Act 1982 Part 2
Amendments relating to dispensing with bail Division 3
s. 15
(2) Schedule 1 Part B is amended as follows:
(a) by deleting the heading and inserting instead --
"
Part B -- Cessation of powers relating to bail
5 ";
(b) by deleting clause 1 and inserting the following clause
instead --
"
1. Upon decision by Judge, power of other officers ceases
10 (1) After a Judge has granted or refused bail for an appearance
by a defendant the power to grant bail for that appearance
ceases to be vested in --
(a) any judicial officer whose jurisdiction is inferior to
that of the Judge; or
15 (b) any authorized officer.
(2) After a Judge has dispensed with the requirement for bail for
an appearance by a defendant the power to grant or refuse
bail for that appearance ceases to be vested in any officer
referred to in subclause (1)(a) or (b).
20 (3) In this clause --
"Judge" means a Judge of the Supreme Court, the
Children's Court or the District Court.
";
(c) in clause 2 by inserting after "to grant" --
25 " , refuse or dispense with ";
(d) in clause 2 by deleting "or refused" and inserting
instead --
" , refused or dispensed with ".
page 13
Bail Amendment Bill 2000
Part 2 Amendments to Bail Act 1982
Division 4 Amendments relating to duty of judicial officer in respect of
unconvicted defendants
s. 16
(3) Schedule 1 Part C is amended by deleting "Principles
governing grant or refusal of bail" and inserting instead --
" Governing principles ".
Division 4 -- Amendments relating to duty of judicial officer in
5 respect of unconvicted defendants
16. Section 5 amended
Section 5(2) is amended by deleting "7(3)" and inserting
instead --
" 7B, 7C, 7E ".
10 17. Section 6 amended
Section 6(3) is repealed and the following subsection is inserted
instead --
"
(3) Where under section 16 only a justice has power to
15 grant bail for an offence, the police officer or other
person who arrests a person for an offence shall --
(a) unless, as soon as is practicable, the police
officer or other person brings the defendant or
causes the defendant to be brought before a
20 court; and
(b) whether or not an application for bail is made
by the defendant or on the defendant's behalf,
bring or cause the defendant to be brought as soon as is
practicable before a justice for the purpose of having
25 the defendant's case for bail considered by the justice
acting in terms of subsection (2)(b).
".
page 14
Bail Amendment Bill 2000
Amendments to Bail Act 1982 Part 2
Amendments relating to duty of judicial officer in respect of Division 4
unconvicted defendants
s. 18
18. Section 7 amended
(1) Section 7(1) is amended by deleting "subsection (2)" and
inserting instead --
" section 7B, 7C or 7E ".
5 (2) Section 7(2), (3) and (4) are repealed.
19. Sections 7B, 7C and 7D inserted
After section 7A the following sections are inserted --
"
7B. Special provision for adult defendants in murder
10 cases
(1) This section applies where --
(a) a defendant is in custody for an offence of
wilful murder or murder so that under
section 15 only a Judge has power to grant bail;
15 and
(b) the defendant is not a child.
(2) Where this section applies the defendant, or a person
on the defendant's behalf, may make an application to
a Judge for bail at any time before conviction for the
20 offence.
(3) Upon a defendant's initial appearance in court for an
offence of wilful murder or murder the judicial officer
who may order the defendant's detention in custody is
under a duty to inform the defendant of the right
25 conferred by subsection (2).
page 15
Bail Amendment Bill 2000
Part 2 Amendments to Bail Act 1982
Division 4 Amendments relating to duty of judicial officer in respect of
unconvicted defendants
s. 19
(4) Where --
(a) a defendant's case for bail has been considered
by a Judge on an application under
subsection (2); and
5 (b) bail has been refused,
the defendant's case for bail shall not be considered on
any subsequent occasion in the same case when the
defendant's continued detention may be ordered unless
subsection (5) applies.
10 (5) The defendant's case for bail shall again be considered
by a Judge if the defendant, or a person on the
defendant's behalf, applies to a Judge and satisfies the
Judge that --
(a) new facts have been discovered, new
15 circumstances have arisen or the circumstances
have changed since bail was refused; or
(b) the defendant failed to adequately present the
defendant's case for bail on the previous
occasion.
20 (6) Where --
(a) a defendant's case for bail has been considered
by a Judge on an application under
subsection (2); and
(b) bail has been granted,
25 on any subsequent appearance in the same case a
judicial officer may order, notwithstanding section 15,
that bail is to continue on the same terms and
conditions.
page 16
Bail Amendment Bill 2000
Amendments to Bail Act 1982 Part 2
Amendments relating to duty of judicial officer in respect of Division 4
unconvicted defendants
s. 19
(7) The defendant is to be taken before the Judge for the
purposes of an application under this section only if the
Judge so orders.
(8) In this section --
5 "Judge" means a Judge of the Supreme Court.
7C. Special provision for child defendants in murder
cases
(1) This section applies where a child defendant is in
custody for an offence of wilful murder or murder so
10 that under section 15 only a Judge of the Children's
Court has power to grant bail.
(2) Where this section applies, the judicial officer referred
to in section 7(1) other than a Judge of the Children's
Court, shall, whether or not an application for bail is
15 made by the defendant or on the defendant's behalf,
cause the defendant to be taken as soon as is
practicable before a Judge of the Children's Court for
the purpose of having the defendant's case for bail
considered by the Judge.
20 (3) Notwithstanding subsection (2), where --
(a) the duty described in that subsection has been
discharged once in relation to a child
defendant's case for bail; and
(b) bail has on that occasion been refused by a
25 Judge of the Children's Court,
the defendant's case for bail need not be considered on
any subsequent occasion in the same case when the
defendant's continued detention may be ordered unless
subsection (4) applies.
page 17
Bail Amendment Bill 2000
Part 2 Amendments to Bail Act 1982
Division 4 Amendments relating to duty of judicial officer in respect of
unconvicted defendants
s. 19
(4) On a subsequent occasion the defendant may apply to
the judicial officer who may order the defendant's
detention for a reconsideration of the defendant's case
for bail on the ground that --
5 (a) new facts have been discovered, new
circumstances have arisen or the circumstances
have changed since bail was refused on the
occasion mentioned in subsection (3); or
(b) the defendant failed to adequately present the
10 defendant's case for bail on that occasion.
(5) If the judicial officer is satisfied as to one or more of
those grounds the judicial officer shall cause the
defendant to be taken as soon as is practicable before a
Judge of the Children's Court for the purpose of having
15 the defendant's case for bail considered by the Judge.
7D. Previous decision may be adopted
(1) Notwithstanding subsection (1) of section 7, after --
(a) the duty described in that subsection has been
discharged once in relation to a defendant's
20 case for bail; or
(b) a Judge of the Children's Court has considered
the case under section 15,
it is sufficient on any subsequent consideration of bail
in the same case for a judicial officer, including a
25 Judge of the Children's Court acting under section 15,
to make inquiry of the defendant in terms of
subsection (2).
(2) The inquiry to be so made is --
(a) whether any new fact has been discovered or
30 new circumstance has arisen, or whether the
page 18
Bail Amendment Bill 2000
Amendments to Bail Act 1982 Part 2
Amendments relating to certificate for release from custody Division 5
s. 20
circumstances have changed, since bail was
previously granted or refused; and
(b) whether the defendant considers that the
defendant failed to adequately present the
5 defendant's case for bail on a previous
occasion.
(3) Unless the judicial officer is satisfied that there is any
reason of the kind mentioned in subsection (2) for not
doing so, the judicial officer may adopt the decision
10 previously made in the case, but with power to make
such variations of the terms and conditions of bail as
the judicial officer thinks fit.
".
Division 5 -- Amendments relating to certificate for release
15 from custody
20. Section 11 amended
Section 11(2) and (3) are repealed and the following subsections
are inserted instead --
"
20 (2) Where the defendant is in custody in a lock-up or
prison, the right conferred by subsection (1) is also
subject to the person in charge of the lock-up or prison
either --
(a) signing a certificate under subsection (3); or
25 (b) receiving notice that a certificate has been
signed by another person under that subsection.
(3) After a defendant becomes entitled to be at liberty as
provided in subsection (1), a person referred to in
section 29 may sign a certificate to that effect in the
30 prescribed form.
page 19
Bail Amendment Bill 2000
Part 2 Amendments to Bail Act 1982
Division 6 Amendments relating to the extension of section 14 to Judge
of the District Court or of the Children's Court
s. 21
(4) The person in charge of a lock-up or prison in which
the defendant is in custody shall release the defendant
from custody as soon as is practicable after --
(a) the person in charge signs the certificate; or
5 (b) if the certificate is signed by a person other than
the person in charge, it comes to the knowledge
of the person in charge that the certificate has
been signed.
".
10 21. Section 29 amended
Section 29(h) is amended as follows:
(a) by inserting after "is in" --
" a lock-up or ";
(b) by inserting after "of the" --
15 " lock-up or ".
Division 6 -- Amendments relating to the extension of
section 14 to Judge of the District Court or of the
Children's Court
22. Section 3 amended
20 Section 3(1) is amended in the definition of "appropriate
judicial officer" as follows:
(a) in paragraph (a) by deleting "and (c)" and inserting
instead --
" , (c) and (d) ";
page 20
Bail Amendment Bill 2000
Amendments to Bail Act 1982 Part 2
Amendments relating to the extension of section 14 to Judge Division 6
of the District Court or of the Children's Court
s. 23
(b) by deleting paragraph (c) and inserting the following
paragraphs instead --
"
(c) except in section 49, means a Judge of the
5 Supreme Court or of the Children's Court, as
the case may require, in any case where --
(i) under section 15 only a Judge of the
Supreme Court or of the Children's
Court has power to grant bail; or
10 (ii) a judicial officer has exercised the
power contained in section 31(2)(d),
for the appearance in question;
(d) except in section 49, means a Judge of the
Supreme Court, of the District Court, or of
15 the Children's Court, as the case may
require, in any case where such a Judge has
granted bail under section 14 for the
appearance in question;
".
20 23. Section 14 amended
(1) Section 14(1), (2), (2a) and (3) are amended by deleting "of the
Supreme Court" wherever it occurs.
(2) Section 14(4) and (5) are repealed and the following subsection
is inserted instead --
25 "
(4) In this section --
(a) references to "a Judge" are references --
(i) in the case of a child charged with an
offence before the Children's Court, to a
30 Judge of that Court;
page 21
Bail Amendment Bill 2000
Part 2 Amendments to Bail Act 1982
Division 7 Amendments enabling regard to be had to circumstances of
offence and relating to bail in murder cases
s. 24
(ii) in the case of a defendant committed for
trial or sentence to the District Court, to
a Judge of that Court; and
(iii) in any other case, to a Judge of the
5 Supreme Court;
and
(b) references to "any other judicial officer" --
(i) in relation to the exercise of powers
under this section by a Judge, are
10 references to any judicial officer whose
jurisdiction is inferior to that of the
Judge; but
(ii) in relation to the exercise of powers
under this section by a Judge of the
15 Supreme Court, do not include a Judge
of the Children's Court or a Judge of the
District Court.
".
Division 7 -- Amendments enabling regard to be had to
20 circumstances of offence and relating to bail in murder cases
24. Schedule 1 amended
Schedule 1 Part C is amended as follows:
(a) in clause 1 by deleting "clause 3A" and inserting
instead --
25 " clauses 3A and 3C ";
(b) in clause 2(3)(a) by deleting "clause 3A" and inserting
instead --
" clauses 3A and 3C ";
page 22
Bail Amendment Bill 2000
Amendments to Bail Act 1982 Part 2
Amendment relating to discretion to waive deposit Division 8
s. 25
(c) by inserting before clause 4 the following clause --
"
3C. Bail in murder cases
Bail is only to be granted to a defendant who is in custody
5 awaiting an appearance in court on a charge of wilful
murder or murder if there are exceptional reasons why the
defendant should not be kept in custody.
".
Division 8 -- Amendment relating to discretion to waive deposit
10 25. Section 18 amended
(1) Section 18(2)(b) is amended by inserting before "fix an
amount" --
" subject to subsection (2a), ".
(2) After section 18(2) the following subsection is inserted --
15 "
(2a) Notwithstanding subsection (2)(b), an authorized
police officer may dispense with the requirement for
bail under this section without the deposit of a security
if satisfied that there is sufficient justification for doing
20 so.
".
page 23
Bail Amendment Bill 2000
Part 2 Amendments to Bail Act 1982
Division 9 Amendments relating to procedure under section 19
s. 26
Division 9 -- Amendments relating to procedure
under section 19
26. Section 19 amended
(1) Section 19(2) is repealed and the following subsection is
5 inserted instead --
"
(2) If a defendant fails to appear as mentioned in
subsection (1) the following provisions apply, but
without affecting the power in subsection (3) --
10 (a) the defendant does not, by failing to appear,
commit an offence against section 51;
(b) if it is satisfied that section 18(2)(a) has been
complied with in respect of an offence, the
court --
15 (i) may proceed to hear and determine the
proceedings for that offence;
(ii) shall order that the deposit be applied
wholly or partly in or towards payment
of any sum of money ordered to be paid
20 in respect of the commission of the
offence; and
(iii) shall order that so much (if any) as is
not so disposed of be paid to the Crown;
(c) subparagraph (ii) of paragraph (b) does not
25 affect the recovery of any balance that is not
paid under that subparagraph;
(d) paragraph (b)(iii) applies whether or not the
defendant is convicted of the offence; and
(e) the court may, instead of proceeding under
30 paragraph (b), adjourn the case and issue a
page 24
Bail Amendment Bill 2000
Amendments to Bail Act 1982 Part 2
Amendments relating to bail undertaking Division 10
s. 27
warrant to arrest the defendant and bring the
defendant before the court or a court of like
jurisdiction.
".
5 (2) Section 19(3) is amended by deleting "(2)(b)" and inserting
instead --
" (2)(b)(iii) ".
Division 10 -- Amendments relating to bail undertaking
27. Section 28 amended
10 Section 28(2)(b) is deleted and the following paragraph is
inserted instead --
"
(b) that if the defendant fails to appear at that time
and place the defendant will, as soon as is
15 practicable, appear at the court at which the
defendant was required to appear, when that
court is sitting;
".
28. Various provisions amended
20 The provisions referred to in the Table to this section are
amended by deleting "(ii)" in each place where it occurs.
Table
section 35(1)
section 49(1)
section 51(2)
section 58(1)(b)
Schedule 1 Part D clause 1(2)(a) and (b)
page 25
Bail Amendment Bill 2000
Part 2 Amendments to Bail Act 1982
Division 11 Amendments relating to bail during trial
s. 29
Division 11 -- Amendments relating to bail during trial
29. Section 7 amended
Section 7(1) is amended by deleting "(including detention
during the period of his trial)".
5 30. Section 7E inserted
After section 7D the following section is inserted --
"
7E. Bail during trial
(1) Where --
10 (a) a defendant has been refused bail for the
defendant's appearance for trial for an offence;
and
(b) the trial extends beyond one day,
a judicial officer referred to in subsection (1) of
15 section 7 need not comply with that subsection unless
the defendant, or a person on the defendant's behalf,
applies for bail.
(2) In subsection (1) --
"trial" means that part of proceedings for an offence
20 when evidence is being received by the court in
respect of the offence and also extends to any time
when --
(a) legal argument is being heard; or
(b) a judicial officer or a jury is deliberating.
25 ".
page 26
Bail Amendment Bill 2000
Amendments to Bail Act 1982 Part 2
Amendments relating to bail during trial Division 11
s. 31
31. Section 31A inserted
After section 31 the following section is inserted --
"
31A. Amendment of conditions
5 (1) Where --
(a) a defendant was granted bail for the defendant's
appearance for trial for an offence; and
(b) the trial extends beyond one day,
a judicial officer who grants bail for the next
10 appearance by exercising the power in section 31(2)(a)
may also exercise any of the powers described in
subsection (2).
(2) The powers referred to in subsection (1) are --
(a) to add any condition to the extent that is
15 authorized by clause 2 or 3 of Part D of
Schedule 1;
(b) to vary a condition to that extent; or
(c) to cancel a condition.
(3) A judicial officer who adds, varies or cancels a
20 condition under subsection (1) shall cause an officer of
the court --
(a) to make an appropriate endorsement on the
defendant's bail undertaking; and
(b) to certify on the undertaking that the defendant
25 was notified,
of the addition, variation or cancellation.
page 27
Bail Amendment Bill 2000
Part 2 Amendments to Bail Act 1982
Division 11 Amendments relating to bail during trial
s. 31
(4) When an endorsement is made under subsection (3) --
(a) the bail undertaking is deemed to be amended
according to the endorsement; and
(b) the terms and conditions of the undertaking
5 continue to apply as so amended as if the
defendant had entered into the bail undertaking
in that form.
(5) In any proceedings an endorsement and certificate on a
bail undertaking purporting to have been made under
10 subsection (3) shall be evidence of the matters
appearing in the endorsement or certificate without
proof of the signature of the officer of the court who
made them.
(6) In subsection (1) --
15 "trial" means that part of proceedings for an offence
when evidence is being received by the court in
respect of the offence and also extends to any time
when --
(a) legal argument is being heard; or
20 (b) a judicial officer or a jury is deliberating.
".
page 28
Bail Amendment Bill 2000
Amendments to Bail Act 1982 Part 2
Amendments relating to bail during trial Division 11
s. 32
32. Section 44 replaced
Section 44 is repealed and the following section is inserted
instead --
"
5 44. When surety undertaking extends to different time
etc. substituted under section 31
(1) A surety undertaking does not extend to the failure by
the defendant to appear at a different time or a different
time and place pursuant to section 31 unless --
10 (a) the surety undertaking contains a provision that
it does so extend and, where applicable under
subsection (3), the surety has received notice as
mentioned in that subsection; or
(b) subsection (2) applies.
15 (2) A surety undertaking extends to the failure by the
defendant to appear at a different time substituted
pursuant to section 31(1) during a trial if, at the option
of the surety, the undertaking contains a provision that
it does so extend.
20 (3) A surety undertaking may, at the option of the surety,
also contain a provision that --
(a) where a different time or a different time and
place for the defendant's appearance is
substituted pursuant to section 31; and
25 (b) subsection (2) does not apply,
the surety's liability shall only arise if the surety is
given notice, as soon as is practicable, of the different
time or the different time and place.
page 29
Bail Amendment Bill 2000
Part 2 Amendments to Bail Act 1982
Division 12 Amendments relating to notices under section 31
s. 33
(4) In subsection (2) --
"trial" means that part of proceedings for an offence
when evidence is being received by the court in
respect of the offence and also extends to any time
5 when --
(a) legal argument is being heard; or
(b) a judicial officer or a jury is deliberating.
".
Division 12 -- Amendments relating to notices under section 31
10 33. Section 3A inserted
After section 3 the following section is inserted --
"
3A. Facsimile transmission of documents
(1) A reference in this Act, however expressed, to a notice
15 being sent to a person by facsimile is a reference to the
notice being sent by facsimile transmission to the
person either --
(a) directly to a facsimile address provided by the
person; or
20 (b) through the agency of Australia Post as
described in subsection (2).
(2) A notice may be sent to a person by the sending of a
facsimile transmission of the notice, showing the
address of the person as appearing in the records of the
25 court, to an office of Australia Post near to that
address, and either --
(a) the delivery of a facsimile copy of the notice by
Australia Post to the person at that address; or
page 30
Bail Amendment Bill 2000
Amendments to Bail Act 1982 Part 2
Amendments relating to notices under section 31 Division 12
s. 34
(b) the collection of a facsimile copy of the notice
by the person from an office of Australia Post.
(3) If a notice is sent by facsimile transmission in
accordance with this section, and subsection (2)(b)
5 does not apply, the notice shall be presumed, unless the
contrary is shown, to have been received at the time
when in the ordinary course of events the facsimile
copy --
(a) would have been received; or
10 (b) would have been delivered,
as the case may be.
".
34. Section 31 amended
(1) Section 31(2) is amended as follows:
15 (a) in paragraph (b) by deleting "give written notice
thereof " and inserting instead --
" cause written notice thereof to be given ";
(b) in paragraphs (c) and (d) by deleting "give written
notice" in both places where it occurs and inserting
20 instead --
" cause written notice to be given ";
(c) in paragraph (e) by deleting "give written notice
thereof " and inserting instead --
" cause written notice thereof to be given ";
25 (d) in paragraph (f) by inserting after "of the court" --
" , or an officer authorized under subsection (5), ";
(e) in paragraph (f) by deleting "giving written notice
thereof " and substituting the following --
" causing written notice thereof to be given ".
page 31
Bail Amendment Bill 2000
Part 2 Amendments to Bail Act 1982
Division 12 Amendments relating to notices under section 31
s. 35
(2) After section 31(4) the following subsection is inserted --
"
(5) The Chief Justice in respect of committals to the
Supreme Court, and the Chief Judge of the District
5 Court in respect of committals to that court, may
authorize a person or persons by name or office to
perform the functions referred to in subsection (2)(f).
".
35. Section 32 amended
10 (1) Section 32(1), (2) and (3) are repealed and the following
subsections are inserted instead --
"
(1) A written notice to a defendant under section 31(2)
shall be --
15 (a) given to the defendant personally; or
(b) sent to the defendant --
(i) by post at the defendant's address
appearing in the records of the court; or
(ii) in urgent cases, by facsimile.
20 (2) A person who gives a notice personally as mentioned
in subsection (1)(a) shall endorse on a file copy of the
notice a certificate showing --
(a) that the person has done so; and
(b) the time of doing so.
25 (3) A register shall be kept at each court showing
particulars in respect of each written notice sent by post
or facsimile under subsection (1)(b) for an appearance
in that court or a court to which a defendant has been
committed.
page 32
Bail Amendment Bill 2000
Amendments to Bail Act 1982 Part 2
Amendments relating to notices under section 31 Division 12
s. 35
(3a) If a notice is sent by post under subsection (1)(b)(i) it
shall be presumed, unless the contrary is shown, to
have been received and at the time when, in the
ordinary course of events, the letter would have been
5 delivered.
".
(2) Section 32(4) is amended as follows:
(a) by deleting "endorse" and inserting instead --
" cause to be endorsed ";
10 (b) by deleting "he notified the defendant" and inserting
instead --
" the defendant was notified ".
(3) Section 32(5)(b) is deleted and the following paragraphs are
inserted instead --
15 "
(b) an endorsement --
(i) on a copy of a notice referred to in
subsection (2); or
(ii) on a bail undertaking,
20 purporting to be a certificate referred to in
subsection (2) or (4) is evidence of the matters
appearing in the certificate without proof of the
signature of the person who made the
endorsement; and
25 (c) an entry in a register referred to in
subsection (3) shall be evidence of any matter
stated in the entry without proof of the making
of the entry.
".
page 33
Bail Amendment Bill 2000
Part 2 Amendments to Bail Act 1982
Division 13 Amendment relating to authority to approve sureties
s. 36
Division 13 -- Amendment relating to authority to
approve sureties
36. Section 36 replaced
Section 36 is repealed and the following section is inserted
5 instead --
"
36. Authority to approve sureties
(1) The decision whether an applicant should be approved
as a surety in any case shall be made --
10 (a) by any person referred to in section 29(a) to (g);
(b) by any person for the time being in charge of a
prison; or
(c) where the defendant to whom bail has been
granted is a child, by any authorized
15 community services officer.
(2) A judicial officer when granting bail to a defendant
subject to a requirement for a surety or sureties may
make an order as to --
(a) the giving of notice to the prosecutor of an
20 application for approval of any surety; or
(b) the person or persons who are to, or may,
approve any surety,
and subsection (1) shall have effect subject to any such
order.
25 ".
page 34
Bail Amendment Bill 2000
Amendments to Bail Act 1982 Part 2
Amendments relating to giving of notices under section 44 Division 14
s. 37
Division 14 -- Amendments relating to giving of notices
under section 44
37. Section 45 amended
(1) Section 45(1) is amended as follows:
5 (a) by deleting "44(2)" and inserting instead --
" 44(3) ";
(b) by deleting paragraph (c) and inserting instead --
"
(c) by an officer authorized under subsection (5)
10 sending or causing to be sent the approved form
to the surety --
(i) by post at the surety's address appearing
in the records of the court; or
(ii) in urgent cases, by facsimile.
15 ".
(2) Section 45(2) is repealed and the following subsections are
inserted instead --
"
(2) A person who gives a notice personally for the
20 purposes of subsection (1)(b) shall endorse on a file
copy of the notice a certificate showing --
(a) that the person has done so; and
(b) the time of doing so.
(2a) A register shall be kept at each court showing
25 particulars in respect of each written notice sent by post
or facsimile under subsection (1)(c).
(2b) If a notice is sent by post under subsection (1)(c) it
shall be presumed, unless the contrary is shown, to
page 35
Bail Amendment Bill 2000
Part 2 Amendments to Bail Act 1982
Division 14 Amendments relating to giving of notices under section 44
s. 37
have been received and at the time when, in the
ordinary course of events, the letter would have been
delivered.
".
5 (3) Section 45(3) is amended as follows:
(a) by deleting "endorse" and inserting instead --
" cause to be endorsed ";
(b) by deleting "he notified the surety" and inserting
instead --
10 " the surety was notified ".
(4) Section 45(4) is amended as follows:
(a) by deleting "44(2)" and inserting instead --
" 44(3) ";
(b) by deleting paragraph (b) and inserting instead --
15 "
(b) an endorsement --
(i) on a copy of a notice referred to in
subsection (2); or
(ii) on a surety undertaking,
20 purporting to be a certificate referred to in
subsection (2) or (3) is evidence of the matters
appearing in the certificate without proof of the
signature of the person who made the
endorsement; and
25 (c) an entry in a register referred to in
subsection (2a) shall be evidence of any matter
stated in the entry without proof of the making
of the entry.
".
page 36
Bail Amendment Bill 2000
Amendments to Bail Act 1982 Part 2
Amendments relating to enforcement of surety's undertaking Division 15
s. 38
(5) After section 45(4) the following subsection is inserted --
"
(5) The clerk or registrar of the court is an authorized
person for the purposes of subsection (1)(c) and in
5 addition --
(a) in respect of committals to the Supreme Court,
the Chief Justice; and
(b) in respect of committals to the District Court,
the Chief Judge,
10 may authorize a person, by name or office, to perform
the function referred to in subsection (1)(c).
".
Division 15 -- Amendments relating to enforcement of
surety's undertaking
15 38. Section 49 amended
Section 49(1) is amended as follows:
(a) by deleting paragraph (a) and inserting instead --
"
(a) an application for payment may be made to an
20 appropriate judicial officer by motion or
complaint, as the case may require --
(i) by the Director of Public Prosecutions
where the court before which the
defendant failed to appear was --
25 (I) the District Court, the Supreme
Court, the Full Court of the
Supreme Court or the Court of
Criminal Appeal; or
page 37
Bail Amendment Bill 2000
Part 2 Amendments to Bail Act 1982
Division 16 Amendments relating to the prosecution of offences against
section 51
s. 39
(II) another court, if the Director of
Public Prosecutions is
prosecutor in that court of the
case against the defendant;
5 or
(ii) in other cases, by the clerk or registrar
of the court before which the defendant
failed to appear;
";
10 (b) in paragraph (b) by deleting "that judicial officer shall
summon the surety" and inserting instead --
"
the appropriate judicial officer shall summon
the surety, or cause the surety to be summoned,
15 ".
Division 16 -- Amendments relating to the prosecution of
offences against section 51
39. Section 51A inserted
After section 51 the following section is inserted --
20 "
51A. Proceedings before courts of summary jurisdiction
for an offence against section 51
(1) This section applies to an offence against section 51(1)
or (2) where the court before which the defendant is
25 bound to appear at the time when the defendant fails to
comply with the defendant's bail undertaking ("the
court of hearing") is a court of petty sessions or the
Children's Court.
page 38
Bail Amendment Bill 2000
Amendments to Bail Act 1982 Part 2
Amendments relating to the prosecution of offences against Division 16
section 51
s. 40
(2) Where this section applies to an offence --
(a) proceedings for the offence shall be
commenced by complaint made in writing to a
justice by the clerk of the court of hearing; and
5 (b) that clerk shall issue to the Commissioner of
Police a certificate under section 64 as to the
defendant's failure to appear.
(3) Proceedings that have been commenced under
subsection (2) shall be prosecuted --
10 (a) by the Director of Public Prosecutions, if that
official is the prosecutor of the case in the court
of hearing; and
(b) otherwise, by a police officer.
".
15 40. Section 52 amended
(1) Section 52(3) is amended by inserting after "a justice" --
"
by the registrar of the court before which the defendant
failed to appear
20 ".
(2) After section 52(3) the following subsections are inserted --
"
(3a) A registrar who lodges a complaint under
subsection (3) shall issue to the relevant official a
25 certificate under section 64 as to the defendant's failure
to appear.
(3b) The prosecution of proceedings that have been
commenced under subsection (3) shall be conducted by
the relevant official.
30 ".
page 39
Bail Amendment Bill 2000
Part 2 Amendments to Bail Act 1982
Division 17 Amendments relating to the official who may take action under
section 54 and the judicial officer who has jurisdiction under
section 55
s. 41
(3) After section 52(5) the following subsection is inserted --
"
(6) In this section --
"relevant official" --
5 (a) means the State Crown Solicitor if that
official was acting for the other party in the
proceedings in which the defendant failed to
appear; and
(b) otherwise means the Director of Public
10 Prosecutions.
".
Division 17 -- Amendments relating to the official who may
take action under section 54 and the judicial officer who has
jurisdiction under section 55
15 41. Section 46 amended
Section 46(1)(b) is amended by deleting "police" and inserting
instead --
" relevant ".
42. Section 54 amended
20 (1) Section 54(1) is amended as follows:
(a) by deleting "A police officer may cause a defendant
who has been released on bail" and inserting instead --
"
Where a defendant has been released on bail a relevant
25 officer may cause the defendant
";
page 40
Bail Amendment Bill 2000
Amendments to Bail Act 1982 Part 2
Amendments relating to the official who may take action Division 17
under section 54 and the judicial officer who has jurisdiction
under section 55
s. 42
(b) by deleting "the police officer" and inserting instead --
" the officer ".
(2) Section 54(2) is repealed and the following subsections are
inserted instead --
5 "
(2) For the purpose of causing a defendant to appear before
an appropriate judicial officer as provided in
subsection (1) a police officer may --
(a) arrest the defendant without warrant; and
10 (b) bring the defendant before an appropriate
judicial officer,
but where the relevant officer is the Director of Public
Prosecutions or the State Crown Solicitor a police
officer may only do so at the request in writing of that
15 official.
(2a) Instead of invoking the power conferred by
subsection (2) a relevant officer may make a complaint
to an appropriate judicial officer as to any ground
specified in subsection (1).
20 ".
(3) Section 54(3) is amended by deleting "(2)(b)" and inserting
instead --
" (2a) ".
(4) After section 54(5) the following subsections are inserted --
25 "
(6) If a police officer is satisfied that because of the
urgency of the case it is not practicable for the Director
of Public Prosecutions or the State Crown Solicitor to
page 41
Bail Amendment Bill 2000
Part 2 Amendments to Bail Act 1982
Division 17 Amendments relating to the official who may take action under
section 54 and the judicial officer who has jurisdiction under
section 55
s. 42
exercise powers under this section, the police officer
may exercise those powers notwithstanding that --
(a) the court before which the defendant is required
to appear is a court referred to in
5 subsection (7)(a)(i) or (ii); or
(b) the State Crown Solicitor will conduct the
prosecution against the defendant.
(7) In this section --
"relevant officer" --
10 (a) where the court before which the defendant
is required to appear is --
(i) the District Court, the Supreme Court,
the Full Court of the Supreme Court or
the Court of Criminal Appeal; or
15 (ii) another court and the Director of Public
Prosecutions will conduct the
prosecution against the defendant in that
court,
means --
20 (iii) the Director of Public Prosecutions; or
(iv) if subsection (6) applies, a police officer
referred to in that subsection;
and
(b) in any other case --
25 (i) means the State Crown Solicitor if that
official will conduct the prosecution
against the defendant; and
(ii) otherwise means a police officer.
".
page 42
Bail Amendment Bill 2000
Amendments to Bail Act 1982 Part 2
Amendments relating to the official who may take action Division 17
under section 54 and the judicial officer who has jurisdiction
under section 55
s. 43
43. Section 54A inserted
After section 54 the following section is inserted --
"
54A. Defendant on committal may be taken before court
5 by which committed
(1) This section applies to a defendant --
(a) who has been released on bail following the
defendant's committal to the District Court or
the Supreme Court to be tried (otherwise than
10 for wilful murder or murder) or sentenced or
otherwise dealt with;
(b) who has not made an appearance in that court
on the committal; and
(c) who in the opinion of the relevant officer under
15 section 54 should be made to show cause in
terms of subsection (1) of that section.
(2) The relevant officer may, under section 54, cause a
defendant to whom this section applies to appear
before a judicial officer who is empowered to exercise
20 jurisdiction in the court in which the committal order
was made, instead of before an appropriate judicial
officer as defined in section 3(1).
(3) A judicial officer before whom a defendant so appears
shall be deemed to be an appropriate judicial officer for
25 purposes of section 54(2).
(4) A judicial officer before whom a defendant appears
under section 54 as modified by this section is not
obliged to exercise any power conferred by section 55
but may refuse to do so and direct the relevant officer
page 43
Bail Amendment Bill 2000
Part 2 Amendments to Bail Act 1982
Division 18 Amendment relating to "bail-shopping"
s. 44
to cause the defendant to appear before an appropriate
judicial officer as defined in section 3(1).
(5) A relevant officer shall comply with a direction given
to that officer under subsection (4).
5 ".
Division 18 -- Amendment relating to "bail-shopping"
44. Schedule 1 amended
Schedule 1 Part B is amended by deleting clause 3 and inserting
the following clause instead --
10 "
3. Cessation of power upon refusal of bail for initial
appearance
(1) After an authorized officer has refused bail for an initial
appearance by a defendant, the power to grant bail for that
15 appearance ceases to be vested in another authorized officer,
but a justice or a member of the Children's Court may
nevertheless grant bail for that appearance.
(2) After a justice or a member of the Children's Court has
refused bail for an initial appearance by a defendant, the
20 power to grant bail for that appearance ceases to be vested
in an authorized officer or another justice or another
member of the Children's Court.
".
page 44
Bail Amendment Bill 2000
Amendments to Bail Act 1982 Part 2
Amendment to correct an omission and relating to length of Division 19
bail for initial appearance
s. 45
Division 19 -- Amendment to correct an omission and relating
to length of bail for initial appearance
45. Schedule 1 amended
Schedule 1 Part C is amended in clause 7 as follows:
5 (a) by inserting after "a justice" --
" , a member of the Children's Court ";
(b) by deleting "7" and inserting instead --
" 30 ".
Division 20 -- Amendments relating to appeal to Court of
10 Criminal Appeal
46. Section 3 amended
Section 3(1) is amended in the definition of "judicial officer" by
inserting after "Children's Court" --
"
15 and, where the context so requires, includes the Full
Court of the Supreme Court or the Court of Criminal
Appeal exercising jurisdiction under this Act
".
47. Sections 15A, 15B and 15C inserted
20 After section 15 the following sections are inserted --
"
15A. Appeal from decision of Judge
(1) The prosecutor or the defendant may appeal to the
Court of Criminal Appeal against a bail decision of a
25 Judge of --
(a) the District Court;
page 45
Bail Amendment Bill 2000
Part 2 Amendments to Bail Act 1982
Division 20 Amendments relating to appeal to Court of Criminal Appeal
s. 47
(b) the Children's Court; or
(c) the Supreme Court.
(2) In subsection (1) --
"bail decision" means a decision --
5 (a) to grant or refuse bail;
(b) to revoke or vary bail;
(c) to dispense with the requirement for bail; or
(d) to impose any condition on a grant of bail,
and includes a decision under section 55 or
10 59A(3).
(3) An appeal under this section shall be filed in the office
of the Supreme Court at Perth not later than 21 days
after the day on which the bail decision in question was
made.
15 (4) A party to an appeal under this section who is in
custody is entitled to be present at the hearing of the
appeal if that party so requests, and any official
responsible for that custody who is informed of such a
request shall do what is necessary to give effect to it.
20 15B. Determination of appeal under section 15A, and
related provisions
(1) The Court of Criminal Appeal ("the Court") has
jurisdiction to hear and determine an appeal under
section 15A.
25 (2) Section 687(2) and (7) of The Criminal Code apply to
an appeal under section 15A as if it were an appeal
under Chapter LXIX of that Code.
page 46
Bail Amendment Bill 2000
Amendments to Bail Act 1982 Part 2
Amendments relating to appeal to Court of Criminal Appeal Division 20
s. 47
(3) The Court shall determine an appeal on the information
that was before the Judge whose decision is the subject
of the appeal.
(4) Any decision of the Court in relation to bail shall be
5 made in accordance with the relevant provisions of
sections 13A and 17 and Schedule 1.
(5) Where in determining an appeal the Court revokes the
bail of a defendant who is at liberty, it may order that
the defendant be returned to custody to await the
10 appearance for which the bail was granted.
(6) Where in determining an appeal the Court varies the
bail of a defendant who is at liberty, it may order that
the defendant be returned to custody until the
defendant becomes entitled to be again at liberty
15 pursuant to section 11.
(7) A Judge of the Supreme Court may issue any warrant
that may be necessary to carry into effect an order
under subsection (5) or (6).
15C. Further appeal only by leave
20 (1) This section applies where there has been a
determination of an appeal under section 15B in
relation to an appearance by a defendant in proceedings
for an offence or a group of offences.
(2) The defendant cannot bring a further appeal under
25 section 15A in relation to another appearance in
proceedings for the same offence or group of offences
unless the defendant obtains leave to do so from a
Judge of the Supreme Court.
page 47
Bail Amendment Bill 2000
Part 2 Amendments to Bail Act 1982
Division 20 Amendments relating to appeal to Court of Criminal Appeal
s. 48
(3) A Judge shall not grant leave under subsection (2)
unless the defendant satisfies the Judge that --
(a) new facts have been discovered, new
circumstances have arisen or the circumstances
5 have changed since the determination of the
appeal referred to in subsection (1); or
(b) the defendant failed to adequately present the
defendant's case on that appeal.
".
10 48. Schedule 1 amended
Schedule 1 Part B is amended by inserting after clause 1 the
following clause --
"
1A. Upon decision by Court of Criminal Appeal, other
15 powers cease
After the Court of Criminal Appeal acting under
sections 15A and 15B --
(a) has granted or refused bail for an appearance by a
defendant, the power to grant bail for that
20 appearance; or
(b) has dispensed with the requirement for bail for an
appearance by a defendant, the power to grant or
refuse bail for that appearance,
ceases to be vested in any judicial officer or in any
25 authorized officer.
".
page 48
Bail Amendment Bill 2000
Amendments to Bail Act 1982 Part 2
Amendments relating to prescription of forms Division 21
s. 49
Division 21 -- Amendments relating to prescription of forms
49. Section 3 amended
Section 3(1) is amended by inserting after the definition of
"appropriate judicial officer" the following definition --
5 "
"approved" in relation to a form means approved by
the CEO (Justice);
".
50. Various provisions amended
10 (1) The provisions referred to in the Table to this subsection are
amended by deleting "a prescribed" in each place where it
occurs and inserting instead --
" an approved ".
Table
section 8(1)(b)
section 26(4)(b)
15 (2) The provisions referred to in the Table to this subsection are
amended by deleting "prescribed" in each place where it occurs
and inserting instead --
" approved ".
Table
section 24(1)(a)
section 45(1)(b)
Schedule 1 Part C clause 2(3)(c)
page 49
Bail Amendment Bill 2000
Part 2 Amendments to Bail Act 1982
Division 22 Miscellaneous amendments
s. 51
Division 22 -- Miscellaneous amendments
51. Section 3 amended
Section 3(1) is amended by inserting in their appropriate
alphabetical positions the following definitions --
5 "
"Director of Public Prosecutions" means --
(a) the Director of Public Prosecutions for the
State; or
(b) the officer in charge in the State of the
10 Commonwealth Office of the Director of
Public Prosecutions,
as the case may require;
"registrar" --
(a) in relation to the Supreme Court or the
15 District Court, includes the Principal
Registrar of that court; and
(b) in relation to any court includes a deputy
registrar;
".
20 52. Section 7A amended
(1) Section 7A is amended by deleting the section designation
"7A." and inserting instead --
" 7F. ".
page 50
Bail Amendment Bill 2000
Amendments to Bail Act 1982 Part 2
Miscellaneous amendments Division 22
s. 53
(2) Section 7A(2) is repealed and the following subsection is
inserted instead --
"
(2) Bail shall not be granted to an applicant for bail under
5 subsection (1) until --
(a) the applicant has given notice of the application
for bail to --
(i) the Director of Public Prosecutions; or
(ii) the State Crown Solicitor,
10 as the case may require; and
(b) that official has been given an opportunity to be
heard on the application.
".
53. Section 8 amended
15 Section 8(5) is amended by deleting "7A" and inserting
instead --
" 7F ".
54. Section 9 amended
Section 9(1)(b) is amended by inserting after "24(1)" --
20 " or 24A(1) or (2) ".
55. Section 11 amended
Section 11(1)(e) is amended by inserting after "46," --
" 50F, ".
page 51
Bail Amendment Bill 2000
Part 2 Amendments to Bail Act 1982
Division 23 Reprinting of Bail Act 1982
s. 56
56. Section 21 amended
Section 21(2)(b) is deleted and the following paragraph is
inserted instead --
"
5 (b) the Director of Public Prosecutions or the State
Crown Solicitor to receive notice and be heard
under section 7F(2);
".
57. Section 31 amended
10 Section 31(2)(c) is amended by inserting immediately before
"notifying the defendant" --
"
or a Judge of the Children's Court, as the case
may require,
15 ".
Division 23 -- Reprinting of Bail Act 1982
58. Reprinting authorized
The Bail Act 1982 as amended by this Act may be reprinted
before this Act comes into operation, and for the purposes of the
20 Reprints Act 1984 the Bail Act 1982 as so amended is to be
regarded as a written law.
page 52
Bail Amendment Bill 2000
Consequential amendments to other Acts Part 3
s. 59
Part 3 -- Consequential amendments to other Acts
59. Justices Act 1902 amended
Section 4A of the Justices Act 1902* is amended by inserting
after "section 4" --
5 " or 4A ".
[* Reprinted as at 2 October 1999.
For subsequent amendments see Act No. 47 of 1999.]
60. Supreme Court Act 1935 amended
(1) The amendments in this section are to the Supreme Court
10 Act 1935*.
[* Reprinted as at 23 July 1999.]
(2) Section 58(1)(b) is amended by inserting before "appeals" the
following --
" subject to subsection (1a), ".
15 (3) After section 58(1) the following subsection is inserted --
"
(1a) An appeal does not lie to the Full Court under
subsection (1)(b) against a bail decision as defined in
section 15A(2) of the Bail Act 1982.
20 ".
page 53
Bail Amendment Bill 2000
Part 4 Transitional provisions
s. 61
Part 4 -- Transitional provisions
61. Definitions
In this Part unless the contrary intention appears --
"commencement day" means the day on which this Act, or a
5 relevant provision of this Act, comes into operation;
"new", in relation to a section, subsection or clause, means --
(a) a section inserted in the principal Act;
(b) a subsection inserted in a section of the principal Act;
or
10 (c) a clause inserted in a Part of Schedule 1 to the
principal Act,
by this Act;
"new provision" means --
(a) a new section, a new subsection or a new clause; or
15 (b) a provision of the principal Act as amended by this
Act;
"principal Act" means the Bail Act 1982.
62. Interpretation Act 1984 not affected
Nothing in this Part limits the operation of the Interpretation
20 Act 1984.
63. Amendment made by section 4
The new provision made by section 4 applies to appearances in
court referred to in new section 4A(1)(a) that occur on or after
the commencement day.
page 54
Bail Amendment Bill 2000
Transitional provisions Part 4
s. 64
64. Amendments made by Division 3 of Part 2
The new provisions made by Division 3 of Part 2 apply to
appearances in court coming within section 7(1) of the principal
Act that occur on or after the commencement day.
5 65. Amendments made by section 19
The new provisions made by section 19 apply as follows:
(a) subsection (2) of new section 7B applies so as to enable
a defendant who is detained in custody on or after the
commencement day to make an application allowed for
10 by that subsection;
(b) subsection (3) of new section 7B and subsection (2) of
new section 7C apply to appearances in court coming
within those subsections respectively that occur on or
after the commencement day;
15 (c) new section 7D applies to any subsequent consideration
of bail within the meaning in that section that occurs on
or after the commencement day.
66. Amendments made by section 20
A certificate under section 11(2) of the principal Act that has
20 not been fully acted upon before the commencement day is to be
treated on and after that day as a certificate under new
subsection (3) as inserted in that section by section 20.
67. Amendment made by section 23
New subsection (4) inserted in section 14 of the principal Act by
25 section 23(2) applies as follows:
(a) new subsection (4)(a)(i) applies in respect of children
charged with an offence on or after the commencement
day;
page 55
Bail Amendment Bill 2000
Part 4 Transitional provisions
s. 68
(b) new subsection (4)(a)(ii) applies in respect of defendants
committed to the District Court on or after the
commencement day for trial or sentence;
(c) paragraph (b) of new subsection (4) applies in respect of
5 any power referred to in section 14(1) of the principal
Act that is exercised, or could be exercised, on or after
the commencement day by "any other judicial officer"
as defined in that paragraph.
68. Amendment made by section 24
10 The new provision made by section 24(c) applies to persons
arrested for murder or wilful murder on or after the
commencement day.
69. Amendment made by section 25
The new provision made by section 25(2) applies to persons
15 arrested for a prescribed simple offence, as mentioned in
section 18(1) of the principal Act, on or after the
commencement day.
70. Amendment made by section 26
The new provision made by section 26(1) applies to any failure
20 to appear, as mentioned in section 19(1) of the principal Act,
that occurs on or after the commencement day.
71. Amendments made by sections 27 and 28
(1) A bail undertaking that is in force on or after the
commencement day is a bail undertaking described in
25 subsection (2) of section 28 of the principal Act despite the fact
that it is not expressed in terms of that subsection as amended
by section 27.
page 56
Bail Amendment Bill 2000
Transitional provisions Part 4
s. 72
(2) A surety undertaking that is in force on or after the
commencement day is a surety undertaking within the meaning
in section 35 of the principal Act despite the fact that it is not
expressed in terms of section 35(1) of the principal Act as
5 amended by section 28.
72. Amendments made by sections 30 and 31
The new provisions made by sections 30 and 31 apply to any
trial as defined in new section 7E(2), or part of a trial, that takes
place on or after the commencement day.
10 73. Amendment made by section 32
The new provision made by section 32 applies to a surety
undertaking entered into on or after the commencement day.
74. Amendments made by section 34
The new provisions made by section 34 apply to any
15 adjournment or committal referred to in section 31 of the
principal Act that occurs on or after the commencement day.
75. Amendments made by section 35
The new provisions made by section 35 apply to oral
notifications given, and written notices given or sent, under
20 section 32 of the principal Act on or after the commencement
day.
76. Amendment made by section 36
The new provision made by section 36 applies as follows:
(a) subsection (1) of new section 36 applies to any decision
25 required to be made under that subsection on or after the
commencement day;
page 57
Bail Amendment Bill 2000
Part 4 Transitional provisions
s. 77
(b) subsection (2) of new section 36 applies to any grant of
bail that occurs on or after the commencement day.
77. Amendments made by section 37
The new provisions made by section 37 apply to oral
5 notifications given, and written notices given or sent, for the
purposes of section 44(3) of the principal Act on or after the
commencement day.
78. Amendments made by section 38
(1) The new provisions made by section 38 apply to any failure by
10 a defendant to comply with any requirement of the defendant's
bail undertaking that occurs on or after the commencement day.
(2) Any proceedings under section 49 of the principal Act in
progress immediately before the commencement day may be
continued after that day as if section 38 had not come into
15 operation.
79. Amendment made by section 39
The new provision made by section 39 applies to offences
described in section 51A of the principal Act committed on or
after the commencement day.
20 80. Amendments made by section 40
(1) The new provisions made by section 40 apply to offences
described in section 52(1) of the principal Act committed on or
after the commencement day.
(2) Any proceedings under section 52 of the principal Act in
25 progress immediately before the commencement day may be
continued after that day as if section 40 had not come into
operation.
page 58
Bail Amendment Bill 2000
Transitional provisions Part 4
s. 81
81. Amendments made by sections 42 and 43
(1) Subject to subsection (2), the new provisions made by
sections 42 and 43 apply where, on or after the commencement
day, it is desired to cause a defendant to appear before an
5 appropriate judicial officer as provided for in section 54 of the
principal Act.
(2) Section 54 of the principal Act applies where before the
commencement day --
(a) a defendant was arrested under subsection (2)(a); or
10 (b) a complaint was made under subsection (2)(b),
of that section, as if section 42 had not come into operation.
82. Amendment made by section 44
The new provision made by section 44 applies to a refusal of
bail coming within new clause 3 of Part B of Schedule 1 to the
15 principal Act that occurs on or after the commencement day.
83. Amendments made by section 45
The new provisions made by section 45 apply to a grant of bail
that occurs on or after the commencement day.
84. Amendments made by sections 46 and 47
20 The new provisions made by sections 46 and 47 apply to a bail
decision, as defined in subsection (2) of new section 15A, made
by a Judge referred to in subsection (1) of that section on or
after the commencement day.
85. Amendment made by section 48
25 The new provision made by section 48 applies in respect of --
(a) a grant or refusal of bail; or
page 59
Bail Amendment Bill 2000
Part 4 Transitional provisions
s. 86
(b) a dispensation from the requirement for bail,
coming within new clause 1A of Part B of Schedule 1 to the
principal Act that occurs on or after the commencement day.
86. Amendment made by section 52
5 The new provision made by section 52(2) applies to applications
for bail under section 7F of the principal Act made on or after
the commencement day.
87. Amendment made by section 54
The new provision made by section 54 applies to any
10 consideration of the case for bail that occurs on or after the
commencement day.
88. Amendment made by section 60
(1) Subsection (1a) inserted in section 58 of the Supreme Court
Act 1935 by section 60(3) applies to a bail decision coming
15 within that subsection made on or after the commencement day.
(2) An appeal under section 58(1)(b) of the Supreme Court
Act 1935 against a bail decision made before the
commencement day may be commenced or continued and
determined as if section 60(3) had not come into operation.
20 89. Powers in relation to transitional provisions
(1) If there is no sufficient provision in this Part for any matter or
thing necessary or convenient to give effect to the transition to
the new provisions, the Governor may make that provision by
order published in the Gazette.
page 60
Bail Amendment Bill 2000
Transitional provisions Part 4
s. 89
(2) If in the opinion of the Minister an anomaly arises in the
carrying out of the provisions of this Part the Governor may by
order published in the Gazette --
(a) modify those provisions to remove the anomaly; and
5 (b) make such provision as is necessary or expedient to
carry out the intention of those provisions.
(3) An order under this section may be made so as to have effect on
and from the commencement day.
(4) To the extent that a provision of any such order has effect on a
10 day that is earlier than the day of its publication in the Gazette,
the provision does not operate so as to prejudicially affect the
rights of a person existing before that day.
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